Off with their heads

Arizona's Juries are proving tougher than judges under a new murder sentencing system

Bob Storrs looked spent last week as he left a Maricopa County courtroom after trying to save a young killer's life.

Storrs has been a criminal-defense attorney for nearly 35 years, and has tried many murder trials. But his defense of Tony Aguilar differed from the others in one major regard.

This was the first time Storrs ever had asked a jury, not a judge, to spare a client's life. That's because the Arizona Legislature upended the state's death-penalty laws last year, and turned over sentencing in capital cases to juries.

The 23-year-old Aguilar was the sixth county defendant to face a death sentence since the new laws went into effect last August, and his odds weren't good: Each of the previous five juries had returned death verdicts.

In fact, since the controversial system has been in place, only one defendant out of 10 cases tried statewide has received a life sentence.

Aguilar's guilt never was in doubt. The same jury that considered his sentence -- it was going to be life behind bars or death -- already had convicted him of first-degree murder and other felonies in the senseless September 1996 shooting death of 16-year-old Jonathan Bria.

Aguilar, who also was 16 at the time of the west Phoenix shooting, fired numerous shots into a vehicle during a traffic clash. One of the bullets hit Bria and killed him. Aguilar fled into the night.

Two weeks later, he slaughtered a west Phoenix couple in their home after a car transaction soured. (In a legal quirk, those murders were adjudicated first.)

Aguilar already was serving a life sentence without the possibility of parole on those murders when he went on trial in the road-rage case (which was finally solved because of the dogged work of Phoenix police detective Joe Petrosino.)

Storrs and his co-counsel, Bruce Blumberg, hoped they had presented enough evidence to convince jurors to give Aguilar another life sentence without the chance of parole.

That mitigating evidence included Aguilar's young age when he'd killed Bria, though prosecutor Jeannette Gallagher tried to deflect that by telling jurors, "He was 16 going on 35."

Testimony suggested Aguilar suffered from a degree of brain damage, and that educational and juvenile correctional facilities as well as his family had failed to find him help when he desperately needed it as an early teen.

But prosecutors countered with witnesses who called Aguilar a remorseless sociopath. Phoenix psychologist Brad Bayless reported Aguilar had told him during a jailhouse interview, "I don't kill innocent people,'" a comment that demonstrated a chilling lack of insight.

Aguilar attended his month-long sentencing trial sporadically. When he did show up, he gave the smirking impression that the proceedings were little more than a mildly interesting diversion for him.

The young man's nickname, "Dopey," seemed to suit him.

Shortly before the jury decided Aguilar's fate last Thursday, Storrs wondered if he'd done right by Aguilar.

"We're learning how to do this [jury sentencing] as we go along," he said. "It isn't even in the same ballpark as judge sentencing. I'm just not sure of anything right now. It's a real crapshoot. They created this monster, unnecessarily."


The "monster" has caused more upheaval at the county courthouse than anything in recent memory.

It has shattered long-held alliances, caused irreparable rifts between people who are supposed to be on the same team, and cost taxpayers a ton of money.

The upheaval is the result of a landmark U.S. Supreme Court decision in the case of a November 1994 robbery-murder of a Wells Fargo armored van driver in Glendale.

In June 2002, ruling in Ring vs. Arizona, the high court said juries must consider factors that may make a defendant eligible for execution.

Defense attorneys at first saw Ring as a giant win for Arizona's death-row inmates, including Tim Ring himself, the ex-cop turned killer. A release from the National Association of Criminal Defense Lawyers said the ruling "has given us a bell to ring. Let's ring it in the morning, ring it in the evening, and settle our cases for life all over the nation."

It wasn't as if the nation's "worst" murderers were to be freed from their maximum-security cells. But defense lawyers tried to convince themselves that prosecutors would now be more apt to offer life sentences to death-row inmates who would win re-sentencing because of Ring, and also to newly charged defendants.

Though the high court didn't actually require juries do the sentencing in death cases, prosecutors prodded then-Governor Jane Hull to call a special legislative session to pass a law that did make juries -- not judges -- responsible for sentencing. (See accompanying story)

That led to what one defense attorney calls "the new world order," or life after Ring.

Prosecutors seem to be the only ones in Arizona's criminal-justice system who have embraced this new world.

"Defense lawyers may have won the battle in Ring, but they're losing the war," says Maricopa County Attorney Rick Romley, almost gleefully. "You have to be careful about what you wish for sometimes."

One prominent Phoenix attorney says the reason for the state's clean sweep in capital cases since Ringhas been unfair judges and unprepared defense attorneys.

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